SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
CASE NUMBER: 1505/2019P
In the matter between:
BHEKAKONKE R XULU PLAINTIFF
Versus
MEMBER OF THE EXECUTIVE COUNCIL:
DEPARTMENT OF EDUCATION, KWAZULU-NATAL DEFENDANT
JUDGMENT
P C BEZUIDENHOUT J:
[1] Defendant filed and exception to Plaintiff’s particulars of claim. When the
hearing commenced Defendant sought condonation for the late filing of its heads of
argument and filed a substantive application together with his heads of argument.
This was not objected to by Plaintiff and accordingly condonation was granted.
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[2] The exception by Defendant concerns one legal issue as submitted by
Defendant. It concerns the averment in paragraph 3 and 5 of the particulars of claim
where Plaintiff alleges that “he” was employed by Defendant.
[3] The particulars of claim sets out in paragraph 2:
“The defendant is the MEMBER OF THE EXECUTIVE COUNCIL:
DEPARTMENT OF EDUCATION, KWAZULU-NATAL, who is cited herein in
his capacity as the Political head of the KwaZulu -Natal Department of
Education with his place of business at office G25 Metropolitan Building, 1[...]
P[...] Street, Pietermaritzburg, 3201.”
In paragraph 3 and 5 of the particulars of claim Plaintiff states that he was employed
by Defendant.
[4] It is submitted on behalf of Defendant that section 3(1)(b) of the Employment
of Educat ors Act 76 of 1998 provides that the Head of Department shall be the
employer of educators in the services of the Provincial Department of Basic
Education for all purposes of employment. It is therefore contended that although
the citation may be correct that it is incorrect in the particulars of claim to state that
Plaintiff was employed by Defendant.
[5] Defendant also relies on a paragraph in a judgment of the Supreme Court of
Appeal in MEC for Education KwaZulu -Natal v Singh dated 9 June 2023 where it
was held obiter that given the provisions of section 3(1)(b) of the Employment of
Educators Act 76 of 1998 the Head of the Provincial Department of Education ought
to have been cited as the employer.
[6] The State Liability Act 20 of 1957 section 2 states that in the case of a
provincial department it is the responsible member of the Executive Council for that
department who is the responsible person.
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[7] In the case of Jayiya v MEC for Welfare Eastern Cape 2024 (2) SA 611 (SCA)
in paragraph 5 it was held:
“A litigant brings a National or Provincial Department before Court by citing
the political head of the department in a representative capacity. In the case
of the Dep artment of the National Government this would be the responsible
Minister. In the case of a Provincial Department it is the responsible member
of the Executive Council. That is what section 2 of the State Liability Act 20 of
1957 provides. The first respondent should have been the only one. If this
had been borne in mind at the outset of the procedural mis haps might have
been avoided.”
[8] On a reading of the particulars of claim paragraph 2 together with what is
stated in paragraphs 3 and 5 is in my view clear that what is referred to is the
Department of Education which employed Plaintiff. This is also apparent from the
documentation which is attached which all refer to the provincial Department of
Education KwaZulu-Natal.
[9] Paragraph 3 (3)(b) of the Employment of Educators Act number 76 of 1998
states as follows:
“For the purposes of creating posts on the Educator Establishment of a
Provincial Department of Basic Education the Member of the Executive
Council shall be the employer of educators in the service of that Department.”
[10] It is thus apparent that the MEC is also an employer of the educators.
[11] Even if this is not correct I am satisfied that reading paragraph 2 of the
particulars of claim with paragraph 3 and 5 it is apparent tha t the Department of
Education of KwaZulu-Natal of whom the MEC is the nominal head is the employer.
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[12] In my view the exception cannot stand . I t is apparent from the particulars of
claim who Defendant is and the particulars of claim sets out a cause of action.
Accordingly the following order is made:
The exception is dismissed with costs.
____________________
P C BEZUIDENHHOUT J.
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JUDGMENT RESEVED: 10 FEBRUARY 2026
JUDGMENT HANDED DOWN: 16 FEBRUARY 2026
COUNSEL FOR PLAINTIFF: S K XULU
Instructed by: Nkosi and Associates
Tel: 081 297 6613
Ref: LIT/193/DBN
Maphumulo Mazibuko Attorneys
Durban
Tel: 031 307 1994
Email: mthokozisimazibuko@telkomsa.net
Ref: Mr M A Mazibuko/XU 022-000
c/o: SG Nzimande Attorneys
Pietermaritzburg
COUNSEL FOR DEFENDANT: A PILLAY
Instructed by: State Attorney (KZN)
Durban
Ref: 35/002288/19/X/P23
K Bhagwan/cet
Tel: 031 365 2591
Email: KBhagwan@justice.gov.za